Exhibit 4
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BANC OF AMERICA FUNDING CORPORATION,
as Depositor
BANK OF AMERICA, N.A.,
as Servicer
and
THE BANK OF NEW YORK,
as Trustee
AMENDMENT No. 1
Dated January 30, 2004
To
The
POOLING AND SERVICING AGREEMENT
Dated November 26, 2002
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Mortgage Pass-Through Certificates
Series 2002-2
AMENDMENT No. 1, dated January 30, 2004, (the "Amendment"), to the
Pooling and Servicing Agreement dated November 26, 2002 (the "Agreement") among
BANC OF AMERICA FUNDING CORPORATION, as depositor (the "Depositor"), BANK OF
AMERICA, N.A., as servicer (the "Servicer") and THE BANK OF NEW YORK, as trustee
(the "Trustee").
WHEREAS, Section 11.01 of the Agreement provides, among other
things, that the Depositor, the Servicer and the Trustee may amend the
Agreement, without the consent of any of the Certificateholders, to make any
other provisions with respect to matters or questions arising under the
Agreement which shall not be materially inconsistent with the provisions of this
Agreement, provided that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Certificateholder.
WHEREAS, Section 11.01 of the Agreement also provides, among other
things, that the Depositor, the Servicer and the Trustee may amend the
Agreement, subject to certain provisos, with the consent of the Holders of
Certificates evidencing Percentage Interests aggregating not less than 66-2/3%
of each Class of Certificates affected thereby for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Agreement or modifying in any manner the rights of the Holders of
Certificates of such Class.
WHEREAS, the Depositor, the Servicer and the Trustee desire to amend
the Agreement, as set forth in this Amendment, and have obtained the consent of
the Holder of 100% Percentage Interest of the Class SES Certificates and the
Opinions of Counsel required by Section 11.01 of the Agreement, including the
Opinion of Counsel referred to in the first WHEREAS clause herein relating to
the effect of such amendments on the other Certificateholders.
NOW THEREFORE, in consideration of the mutual agreements herein
contained, the Depositor, the Servicer and the Trustee agree as follows:
All terms used in this Amendment which are defined in the Agreement,
either directly or by reference therein, have the meanings assigned to them
therein, except to the extent such terms are defined or modified in this
Amendment or the context clearly requires otherwise.
Section 1. Amendment to Section 1.01. The definition of "Class SES
Compensating Interest" is hereby replaced in its entirety with the following:
Class SES Compensating Interest: With respect to each Distribution
Date, the least of (a) the amount distributable pursuant to Section 5.02(a)(i)
on the Class SES Certificates (before any reduction in respect of Class SES
Compensating Interest), (b) the Prepayment Interest Shortfall for such
Distribution Date less the Servicer Compensating Interest for such Distribution
Date and (c) one-twelfth of 0.25% of the Pool Stated Principal Balance less the
Servicer Compensating Interest for such Distribution Date.
Section 2. Amendment of Section 1.01. The definition of "Class SES
Distributable Amount" is hereby deleted in its entirety.
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Section 3. Amendment of Section 1.01. The definition of "Servicer
Compensating Interest" is hereby replaced in its entirety with the following:
Servicer Compensating Interest: With respect to each Distribution
Date, the least of (a) the aggregate Servicing Fee for such Distribution Date
(before giving effect to any reduction pursuant to Section 3.17), (b) the
Prepayment Interest Shortfall for such Distribution Date and (c) one-twelfth of
0.25% of the Pool Stated Principal Balance.
Section 4. Amendment of Section 3.11(a)(viii). Section 3.11(a)(viii)
is hereby replaced in its entirety with the following:
(viii) on or prior to the Remittance Date, to withdraw an amount
equal to the Pool Distribution Amount (less, at the Servicer's option, but only
for so long as Bank of America is the Servicer and Bank of America or an
affiliate is the sole Holder of the Class SES Certificates, an amount up to
1/12th of 0.200% per annum of the Stated Principal Balance of the Mortgage Loans
on the Due Date in the month preceding the month of such Distribution Date,
which amount shall be withdrawn on the related Distribution Date and remitted to
the Holders of the Class SES Certificates on behalf of the Trustee in respect of
the Interest Distribution Amount of the Class SES Certificates), any Ancillary
Income (provided, however, if Bank of America is the Servicer and Bank of
America or an affiliate is the sole Holder of the Class SES Certificates, such
Ancillary Income, at the Servicer's option, need not be remitted to the Trustee
but shall be withdrawn on the related Distribution Date and remitted to the
Holders of the Class SES Certificates on behalf of the Trustee), the related
Trustee Fee and any other amounts due to the Trustee under this Agreement for
such Distribution Date, to the extent on deposit, and remit such amount in
immediately available funds to the Trustee for deposit in the Certificate
Account; and
Section 5. Amendment of Section 3.17. Section 3.17 is hereby
replaced in its entirety with the following:
Section 3.17 Servicing Compensation. The Servicer shall be entitled
out of each payment of interest on a Mortgage Loan (or portion thereof) and
included in the Trust Estate to retain or withdraw from the Servicer Custodial
Account an amount equal to the Servicing Fee for such Distribution Date;
provided, however, that the aggregate Servicing Fee for the Servicer relating to
the Mortgage Loans for such Distribution Date shall be reduced (but not below
zero) by an amount equal to the Servicer Compensating Interest for such
Distribution Date. Any successor Servicer shall also be entitled to the
Supplemental Servicing Fee.
Any additional Servicing Compensation shall be retained by the
Servicer to the extent not required to be deposited in the Servicer Custodial
Account pursuant to Section 3.08(b). The Servicer shall be required to pay all
expenses incurred by it in connection with its servicing activities hereunder
and shall not be entitled to reimbursement therefor except as specifically
provided in this Agreement.
Section 6. Amendment of Section 5.04(a)(xvi). Section 5.04(a)(xvi)
is hereby replaced in its entirety with the following:
(xvi) the Ancillary Income for the Class SES Certificates for such
Distribution Date; and
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Section 7. Counterparts. This Amendment may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one and the
same instrument.
Section 8. Ratification of Agreement. Except as modified and
expressly amended by this Amendment, the Agreement is in all respects ratified
and confirmed, and all the terms, provisions and conditions thereof shall be and
remain in full force and effect.
Section 9. Governing Law. This Amendment shall be construed in
accordance with the laws of the State of New York (without regard to conflicts
of laws principles), and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
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IN WITNESS WHEREOF, the Depositor, the Servicer and the Trustee have
caused their names to be signed hereto by their respective officers thereunto
duly authorized, all as of the day and year first above written.
BANC OF AMERICA FUNDING CORPORATION,
as Depositor
By: /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
BANK OF AMERICA, N.A.,
as Servicer
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
-5-
STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
On this 30th day of January, 2004, before me, a notary public in and
for the State of North Carolina, personally appeared Xxxxxxx X. Xxxxxxxxxx,
known to me who, being by me duly sworn, did depose and say that he is a Senior
Vice President of Banc of America Funding Corporation, a Delaware corporation,
one of the parties that executed the foregoing instrument; and that he signed
his name thereto by order of the Board of Directors of said corporation.
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Notary Public
[NOTARIAL SEAL]
My commission expires .
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STATE OF NORTH CAROLINA )
) ss.:
COUNTY OF MECKLENBURG )
)
On the 30th day of January, 2004, before me, a notary public in and
for the State of North Carolina, personally appeared Xxxxxxx X. Xxxxxxxx, known
to me who, being by me duly sworn, did depose and say that he is the Senior Vice
President of Bank of America, N.A., a national banking association, one of the
parties that executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of such association.
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Notary Public
[NOTARIAL SEAL]
My commission expires .
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 30th day of January, 2004, before me, a notary public in and
for the State of New York, personally appeared Xxxxx Xxxxxxx, known to me who,
being by me duly sworn, did depose and say that she is a Vice President of The
Bank of New York, a New York banking corporation, one of the parties that
executed the foregoing instrument; and that she signed her name thereto by order
of the Board of Directors of said corporation.
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Notary Public
[NOTARIAL SEAL]
My commission expires .
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